Getting disability insurance is easy. Filing claims and receiving benefits? Not so much.
FOR ONE CHIROPRACTOR SUFFERING FROM SEVERE CARPAL TUNNEL SYNDROME, treating patients had become agonizingly painful. Despite all his attempts to alleviate the pain and treatment, scheduling more time between patients, and resting longer throughout the day, taking more days off, etc., the condition did not get better.
His own treating physician had recommended that continued aggressive conservative care, combined with his not treating patients, would be the appropriate care to manage the impairment.
For now, the insurance company is continuing to pay him, but they continue to seek an examination, called an Independent Medical Examination (IME) that has been the subject of many court battles, as it is paid for by the insurance company and is regularly challenged as not being truly independent. The IME is part of an ongoing, aggressive effort to refute his continued eligibility for benefits.
Agreeing on treatment
The insurance company has neither agreed that the treatment plan recommended by his doctor is appropriate, nor accepted the severity of his condition and its ongoing impact on his ability to work. He lives with the pain of his condition and the worry that at any moment, his disability claim will be terminated and his benefits cut off. Month-to-month worries — that is not why his disability insurance was purchased.
The concept of disability insurance is simple, but as this and many other chiropractors learn, filing for a claim and receiving benefits is not. Let’s look at the reality of disability insurance, and how to protect yourself and your family.
Medical care requirements
Many disability insurance policies define disability (whether total or partial) with elements which must be satisfied in order to secure benefits. One of the elements often is a medical care requirement. Different policies will define this medical care differently, and the potential implications of each such definition are significant.
The first requirement is that the claimant be under the regular care of a licensed physician who has been trained to treat the condition causing the disability. The second requirement is that the care and treatment is in accordance with the medical standard of care appropriate to the condition causing the disability. The third issue is where we most often see major issues. The phrase in the disability insurance contract is typically this: “The care and treatment shall be designed to lead to the insured being able to return to the material and substantial duties of the regular occupation.” For the insurance company, the regular care must include either the first section, the first and second section combined, or all three sections together.
The third section of a medical care definition has the greatest potential for problems for claimants, as this could arguably be read to permit the insurance company to compel a claimant to pursue types of medical care (potentially regardless of risk), for the purpose of enabling the insured to make returning to their occupation the primary medical care objective. This could mean compelling an insured to consider risky back surgery or requiring bilateral carpal tunnel surgery for a chiropractor performing delicate procedures requiring fine dexterity and/or repeated force. Surgery does not always go as expected, and the results can be disastrous, career-ending and life-changing.
Case study #2
Another chiropractor also suffered from severe carpal tunnel syndrome, likely the result of repeated force applied over years of treating patients. She was extremely reluctant to undergo surgery, in part because she had young children who were dependent upon her for care and was concerned that her rehabilitation after surgery would be compromised. The disability insurance company then stopped paying her monthly disability benefits, arguing a lack of appropriate care and treatment, and she felt she had no choice but to undergo surgery.
It seems unreal that a multibillion-dollar global corporation that sells thousands of disability insurance policies every year would have the legal right to compel a policyowner to undergo a surgical procedure against their will. But that’s exactly what happened — under the threat of no further benefits.
Unfortunately, there were post-surgical complications, and the chiropractor is continuing to struggle with medical issues. The disability insurance company is paying her benefits, but monitoring her closely.
The irony is that the claimant who ultimately had surgery is the one who is being treated far more harshly than the chiropractor in the first example.
Many insureds are stunned when their claim falls into this category of mandated treatment. But disability attorneys are seeing this as an increasing position being taken by the insurance companies, often targeting the medical professional policyholder.
In addition to the ethical injustice in dictating such an approach, the case law which addresses the issue of Appropriate Care and Treatment largely supports a claimant’s logical contentions. As noted in the case law, the medical care policy provision is intended to ensure that claimants are, in fact, receiving medical care.
It is essentially designed to ensure that claimants continue to pursue treatment, and that they continue to have care provided. 1 Other courts have noted similarly in addressing these issues. The “medical care” requirement serves the purpose of “enabl[ing] the insurer ‘to determine that the claimant is actually disabled, is not malingering, and to prevent fraudulent claims.’…Of course, the physician’s care requirement does not permit the insurer to determine the insured’s course of treatment.” 2
Thus, courts considering this issue have repeatedly chastised such medical care decisions reached by insurers in this context.
Be prepared to protect your rights
When considering your medical conditions and how they impact your ability to continue working in your occupation as a chiropractor, you must incorporate into your evaluation the issues of how the medical condition can be treated, and whether your insurance company will be able to inject itself into the medical treatment planning.
If you are an insured with a disability insurance claim, protect your policy rights and ensure that you are properly protected as you navigate the minefields of the disability insurance claim process.
JASON NEWFIELD, Esq., and JUSTIN FRANKEL, Esq., are attorneys with Frankel & Newfield, a firm specializing in disability insurance law. They can be reached through frankelnewfield.com.
1 Slate v. Mass Mut. Life Ins. Co.,
2015 U.S. Dist. LEXIS 24575, * 13 (W.D. Tenn. 2015)
2 Sager v. Std. Ins. Co., 2011
U.S. Dist. LEXIS 96282, * 22 (E.D. N.C. 2011)